Negrophobia and Reasonable Racism

Front matter

NEGRO) 01r

AND REASONABLE RACISM

Negrophobia and Reasonable Racism

Introduction

“Rational” Discrimination and the Black Tax 1

Chapter One The “Reasonable Racist”: A Slippery Oxymoron How We Know What We Know: The Typical, the Reasonable, andthe Accurate 22

Why We Blame Whom We Blame: The Typical, the Reasonable, andthe Damnable 27

Chapter Two The “Intelligent Bayesian”: Reckoning with Rational Discrimination 35 Why Rational Discrimination Is Not Reasonable 46 Race and the Subversion of Rationality 58 viii Contents

Chapter Three The “Involuntary Negrophobe” 61 The Involuntary Negrophobe and Dueling Conceptions of Law 64

Chapter Four

Of Mice and Men: Equal Protection and Unconscious Bias 68 Private Bias and Equal Protection 69 Restructuring the Maze to Serve Justice 77

Chapter Five Blame and Punishment: Narrative, Perspective, Scapegoats, and Demons 81 Framing the Narrative Broadly in Women’s Self-Defense Work 83 Narrative, Consent, and Blame 84 The Fundamental Fault Line: Determinism versus Antideterminism 89 “Disadvantaged Social Background” 94 Opponents Grasp at Straws 96 Ideological Agendas 101

Chapter Six Repealing the Black Tax: Breaking the Discrimination Habit 115

Hypocritical Racists and Aversive Racists 118 Proving Ubiquitous Unconscious Bias 130 Combating Unconscious Discrimination in the Courtroom 139

Notes 161 Index 201

ACKNOWLEDGMENTS

I presented portions of this book at various workshops, colloquia, and faculty seminars in Colorado, Indiana, Pittsburgh, and at the University of Southern California. I gained much from these workshops, seminars, and colloquia, and thank all those who participated. Parts of the book were also presented at the American Association on Law Schools Conference on Torts and at another AALS Conference on Evidence. I received valuable comments from participants at both conferences.

Outside these organized forums, Phreda Devereaux provided extremely helpful remarks on the chapter on Negrophobia; Frank McClelland offered penetrating comments on the chapter on stereotypes and prejudice; and Martha Chamallas, Jules Lobel, Rhonda Wasserman, and Welsh White read large portions of the manuscript, making many very thoughtful remarks.

x Acknowledgments

The discussions of battered women benefited greatly from suggestions by Veronica Hobbs of Advocates for Basic Legal Equality. I am also indebted to Martine Beauman, Rhonda Evans, Dominck Lee, Piyush Seth, and Christopher White for valuable research assistance, and to LuAnn Driscoll, Karen Knochel, Darleen Mocello, Carolyn Rohan, and Barbara Salopek for patient, precise, tireless document processing assistance.

I am also grateful to my editors, Richard Delgado, Niko Pfund, and Jean Stefancic, and to New York University Press. And I am thankful to the following journals for permission to use portions of essays that first appeared in their pages: Stanford Law Review, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes [46 Stan. L. Rev. 781 (1994)]; California Law Review, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit [83 Cal. L. Rev. 733 (1995)].

Negrophobia and Reasonable Racism

Introduction E EES A

S

“RATIONAL” DISCRIMINATION AND THE BLACK TAX

It is a rainy night in a combined residential and commercial neighborhood in a predominantly White upper-middle-class section of a major U.S. city. It is 10:30 P.M. It is raining hard. Although most of the fashionable shops and boutiques in the neighborhood have closed, the neighborhood bank contains an automatic teller. The machine is located in a lobby between two sets of glass doors, the first of which opens directly into the bank and is locked at closing each day, while the second leads to the public sidewalk and remains open twenty-four hours.

A middle-aged resident of the neighborhood enters the bank’s lobby, inserts her bank card into the machine, and requests two hundred dollars. As she waits for her transaction to be processed, the woman suddenly notices a figure moving directly toward the lobby from across the street. Focusing her full attention on the approaching figure, she notes that the person is a young man (at most twenty-something); that he is wearing a trench coat with an upturned collar and a tarpaulin hat pulled down even with his eyes (perhaps in deference to the pouring rain); and that he is Black.

The trench-coat-clad young man glances down the deserted street as he reaches the lobby and then enters, pushing his right shoulder against one of the swinging glass doors. As he pushes the door open, he unbuttons the collar of his trench coat with his right hand and reaches into the coat in the direction of his left armpit. With his eyes focused on the space beneath his coat into which he is reaching, he takes hold of something and begins to withdraw it.

Panic-stricken and conscious of the rhythmic clicking of the automatic teller churning out ten fresh twenty-dollar bills, the woman pulls a small .22 calibre pistol from her purse and levels it at the entering figure. As the young man looks up from his coat, he sees the pistol trained on him and reflexively thrusts his right hand—which now contains a billfold retrieved from his inside breast pocket—out in front of him, shouting at the woman not to shoot. Perceiving a handgun thrust in her direction and startled by the man’s unintelligible shouts, the woman shoots the Black man, who dies clutching his bank card.

This troubling tableau taps the most disturbing source of dread in modern America—Black violence. Polls and studies repeatedly show that most Americans believe that Blacks are “prone to violence.” Anecdotal evidence points to the same conclusion. Many a would-be fare who happened to be Black has developed tennis elbow trying to flag down a taxi, incredulously watching as fellow White hailers are immediately picked up and whisked away. Further, as talk-show diva and media magnate Oprah Winfrey discovered when she was denied admittance to a tony boutique in Chicago that used a buzzer system to screen out “suspicious persons,” even great fame and fantastic wealth do not guarantee immunity against Black stereotypes. As Stevie Wonder observed in one of his most trenchant lyrics, “You might make big cash/but you cannot cash in your face.” And the face of crime, for many Americans, is Black.

In claiming self-defense, the shooter may argue that the Black victim’s race is relevant to the reasonableness of her belief that she was about to be attacked. Her claim might be based on any of three distinct arguments. First, she could insist that it was reasonable to consider the victim’s race in assessing the danger he posed because most people would do so. She might introduce studies or anecdotes demonstrating the frequency with which Americans make assumptions about an individual's character on the basis of race, and argue that she should not be punished for basing her response on the widely held belief that Blacks are more prone to be criminals than Whites. Second, she could point out that, independent of typical American beliefs, her consideration of the victim’s race was reasonable because Blacks commit a disproportionate number of violent crimes and therefore pose a greater statistical threat. “Rational discrimination” would be her watchword. In framing this argument, she would show that large statistical differences exist between the crime rates of Blacks and non-Blacks, and she would assert that she knew of, and reasonably relied on, these statistical probabilities when deciding to shoot.

Finally, if the woman had previously been violently assaulted by a Black individual, she might maintain that her overreaction to the victim’s race was reasonable in light of her earlier traumatic experience. One recent case accorded legal weight to such “ Negrophobia” by holding that an ordinary person assaulted by an anonymous Black individual might develop a pathological fear of all Blacks sufficient to justify an award of disability benefits. Invoking the same psychological proposition, our defendant might contend that her Negrophobia is relevant to the reasonableness of her reactions to the supposed assailant.

Because the concept of reasonableness drives self-defense doctrine, each of these race-based arguments might result in a determination that the shooter should be excused for shooting the Black bank customer. Indeed, recent experience shows that defendants in self-defense cases often exploit the racial fears of jurors in asserting the reasonableness of their fear of supposed assailants who are Black.* The meaning of race does not necessarily “speak for itself” in these cases; defense attorneys construe race in subtle and not-so-subtle ways with the goal of exonerating their clients. Homicide (and wrongful death) trials that center around race-based defenses, therefore, are telling crucibles in which to test the fairness of acting on racial fears.

To appreciate the growing acceptance of racially charged arguments of reasonableness in self-defense cases, one need go no further than the notorious New York subway vigilante case of People v. Goetz.’ The defendant, Bernhard Goetz, successfully claimed that his shooting of four Black teenagers on a crowded subway after two of them smiled at him and “asked” for five dollars was justified as an act of self-defense. Goetz opened fire on the youths as soon as they “asked” for money, shooting some while they were retreating from the scene. He later confessed that he knew none of the youths had a gun. Goetz’s defense attorney, Barry Slotnick, played on the racial factor throughout the trial, relentlessly characterizing the victims in subhuman,

Wid I dl stereotype-laden terms such as “savages,” “vultures,” “predators on society.”* The tactic worked. Goetz was acquitted by a predominantly White jury.

Exploitation of racial fears is also evident in the trial of the four White Los Angeles police officers who beat Rodney King. Although this was not strictly a self-defense case, public attention riveted on the White policemen’s perception of the threat posed by an unarmed Black man. Throughout the trial, the defense teams made concerted efforts to portray King as an animal or monster. Indeed, one of the defendants, Stacey C. Koon, testified that King was “a monster-like figure akin to a Tasmanian devil.” In his closing argument, the attorney for defendant Laurence M. Powell stressed that the officers’ blows were controlled efforts to subdue King, “a Black man” who was stopped for speeding, who tried to evade the police, and who only reluctantly complied with their commands.° How legitimate are such strategies? Consider first my bank ATM example.

Racial fears are legally relevant to the reasonableness of the shooter’s reaction to the young Black man under self-defense doctrine, technically. Nevertheless, we must reject all her race-based claims of reasonableness. My concession that racial fears are “technically” relevant in self-defense doubtless will raise some eyebrows. “If he admits that on a formal level racial fears are legally relevant, but still rejects their acceptability,” some will say, “then he must be willing to sacrifice logical consistency on the altar of political correctness.” This objection reflects a specious but increasingly popular attack on antidiscrimination programs—formalism. A variety of pinched literalism that exalts form over substance, formalism holds that we look only at the letter of the law, disregarding its animating spirit, and that we equate people and situations that are superficially similar, ignoring deeper differences.

Many cries of “reverse discrimination” grow out of this fallacy: “If historically it was wrong for institutions to consider characteristics such as race and gender to exclude marginalized groups from core community activities, it is just as wrong for these institutions to consider such characteristics in affirmative efforts to include these same marginalized groups in these activities.” Another aspect of the fallacy is the seemingly progressive “color-blind perspective” (or “color-blind formalism”). Under this perspective, decision makers—jurors, judges, employers, teachers, and so forth—must completely ignore race (as well as gender, sexual orientation, and any other markers of social marginality) when making social judgments of others. “Because historically race-consciousness has been used by bigots to oppress minorities,” say advocates of the colorblind perspective, “it is racist and unjust for current-day decision makers to be race-conscious when making social judgments about Blacks (or women or gays and lesbians). Consciously thinking about race will lead either to discrimination against Blacks or to reverse discrimination in their favor.” Formalism thus lumps situations together on the basis of some limited set of similarities and willfully ignores the very different interests, values, and social policies that distinguish them on a deeper level.

This book seeks to debunk such facile formalism. One vehicle for this debunking will be a comparison of the arguments made in defense of battered women who kill and those made in defense of minorities from “rotten social backgrounds” who kill. This comparison is especially needed in view of the O. J. Simpson trial and its rancorous aftermath. For, from the standpoint of popular reactions to the case, the trial seemed to pit the interests of one socially marginalized group, abused women, against those of another, Blacks. Trial watchers especially sensitive to injustices suffered by Blacks in the American justice system seemed more likely to endorse the acquittal, while those especially attuned to the plight of battered women seemed more likely to decry it.

Far from being antithetical, the interests of battered women and disadvantaged Blacks (and other minorities) coincide. At bottom, advocates for battered women and advocates for disadvantaged minorities must overcome the same entrenched conservative assumptions to successfully defend their respective clients. These assumptions bolster the subordination of women and impoverished Blacks by making their plight seem natural and just. We will trace the connections between their shared struggle against domination.

We will also examine recent research in human psychology that demonstrates that color-blind formalism—the effort to ignore a person’s racial identity in making social judgments of her—promotes the very discrimination it professes to prevent. Decision makers who seek to reduce their biased judgments of stereotyped groups must practice color-consciousness, not colorblindness. Inculcation in color-blind orthodoxy is so firm and pervasive in this country, however, that many readers initially may need consciously to suspend disbelief in approaching this thesis. But I will build my argument for race-consciousness in social decision making on hard empirical proof, not faith.

A new numbers racket—discrimination by mathematics— will be investigated as well. Defenders of “rational discrimination” (economist Walter Williams, columnist Richard Cohen, pundit Dinesh D’Souza, and others) charge into discussions of racial justice brandishing the sword of statistics about Black crime rates, a weapon that upon closer inspection turns out to be a hollow stage prop, a nerfsword. Careful analysis will reveal not only that “rational discrimination” is not reasonable, it is racist.

In exposing the “rational discrimination” canard, I will track the formalistic impulse to what may be its most staunchly defended bastion; namely, “high objectivity”—the assumption that factual determinations and value judgments, like two separate tubs, sit on mutually independent bottoms. We will see that, contrary to this assumption, formally identical factual statements about the world, such as “I know my dog is leashed,” cannot be treated the same when uttered in different situations. Put differently, even if I have exactly the same factual information about my dog in two different situations, it may be reasonable for me to say “I know my dog is leashed” in one situation, but totally unreasonable—even criminal—for me to say it in another. In the end, therefore, by plumbing many unexamined assumptions about law, justice, moral reasoning, human psychology, and “high objectivity,” I hope to ferret out the injustices of formalism.

Stubborn Optimism

My impetus for approaching the problem of racial discrimination from the standpoint of the American justice system comes from experience. I first experienced the majesty of the law at age eight when I was propelled from my sleep by a rude thunderclap. Still drowsy, I could feel the reverberations rumbling through our floorboards, swelling in intensity until they reached my bedroom door, which swung open on a man brandishing a shotgun and shouting, “Freeze—police!” What I mistook for a thunderclap turned out to be the sound of our front door unceremoniously parting company with its hinges and striking our living room floor. J first saw the door as my seven siblings and I were ushered into our family room to make room for the cops combing our apartment for contraband. As our gunwielding escorts queued us up for a round of frisks, my eyes fastened on the blue serge suits hulking over my handcuffed and prostrate dad. I couldn't wait to see the looks on their mocking faces when my indomitable dad would snap off the handcuffs and send the cops scurrying for cover. But the next time I saw my dad upright and unshackled was on a Sunday, Family Day, in the Ohio State Penitentiary.

The five years of Family Days that followed gave me plenty of time to ponder the wonders of the law. What struck me as most wondrous about the law was how readily it could be manipulated by spiteful state officials against an innocent but “uppity” Black man. For innocent my dad most certainly was. Even as an eight-year-old I knew that a five-pound bag of marijuana could not spontaneously materialize from thin air in the kitchen cupboard where it was allegedly discovered. And even as an eight-year-old I knew my dad wasn’t stupid or masochistic enough to stash it in the cupboard himself after a close friend in law enforcement had warned him a week earlier that we would be visited by Akron’s finest that very night. So, ruling out spontaneous generation on the one hand and some kind of preposterous paternal “arrest wish” on the other, even to an eight-year-old the explanation was obvious: The grass was planted. (Scandals about persistent police frame-ups in Philadelphia, Los Angeles, and elsewhere, shocking to many, are old news to others.)’

Immersing himself in criminal procedure and constitutional law, drafting and filing his own writs and other legal memoranda, delivering his own oral arguments before appellate tribunals, my dad ultimately vindicated himself through federal habeas corpus, the legal procedure by which state prisoners can go to federal courts to argue that they were unconstitutionally convicted or sentenced (see Armour v. Salisbury, 492 F.2d 1032, 6th Cir. 1974). Sentenced as a first-time offender to twentytwo to fifty-five years for possession and sale of marijuana, he could still be wrongfully rotting in a jail cell if the current hostility to habeas had been in effect. The five years it took the slow wheels of justice to grind out his vindication, however, took a great toll, putting my mother on the public dole and resulting in the replacement of my dad’s red brick high-rise apartment building—what he liked to call his “forty acres and a mule”—by a parking lot for police vehicles. Made the devil wanna holler!

The secret of my dad’s popularity with the city fathers and guardians? As hinted earlier, for one thing he was an “uppity nigger.” As history shows, “uppity nigger” is an appellation applied to Blacks who do not shuck and grin and walk on tippytoes around certain Whites, literally or figuratively. Standing 6 feet 8 inches tall, weighing 260 pounds, possessing a better command of the Queen’s English than most, blessed with keen business acumen, and flouting all the racial conventions of his day, my dad stood out as a Black Gulliver among the lily-White Lilliputians who controlled Akron’s essentially segregated social, economic, and political institutions in the 1950s and 1960s.

But Dad was guilty of one affront even worse than uppityness, one many orders of magnitude more subversive of the racial caste system: miscegenation—the dread commingling of gene pools. Of course, the commingling of Black and White gene pools has a long history in the American experience. White male slave owners forcibly injected their genes into the Black population through the owners’ rape of their Black female chattel for hundreds of years under slavery. But the thought of a 6 foot 8 inch barrel-chested Black man skinny-dipping in their European gene pool unhinged the “Lily-putians.” (Recall, incredulous reader, that until the Supreme Court decision in Loving v. Virginia in 1967, in numerous Southern states interracial marriage was a crime. And certainly the racial attitudes that gave rise to the antimiscegenation laws in the South were not confined to Dixie; as Malcolm X put it: “Anything south of the Canadian border is ‘The South.’”) The rankling sight in the late 1950s and early 1960s of my Irish-American mom, with her head full of flaming red hair, and my strapping Black dad, kicking along main street in stride—one, two, arms locked, indubitably matched—undoubtedly contributed to his false imprisonment.

In college, I scoffed at the naiveté of my classmates who were applying to law schools with the stated objective of serving justice. In my view, entering a courtroom was like entering a crooked casino in which the decks are stacked, dice loaded, roulette wheels fiendishly rigged. It took my dad—who more than anyone had reason for cynicism—to disabuse me of my own. He hammered home that even though the Lily-putians had twisted the law to vent their own venomous prejudices, he himself had found redemption in the law, for he had found the key to his own jailhouse door in a lawbook of the prison library.

The law is not inherently racist or oppressive; it is merely a tool. It can serve as well as subvert justice. In the pages that follow I hope to draw on my dad’s stubborn optimism to develop a more hopeful picture of the legal process than that drawn by some of its critics.

The primary reason for my cautious optimism about the future of the American justice system—despite its tragic history of racial injustice—is that I do not believe that most White people today are Lily-putians. Most White people today truly desire to be above racism. In this, I differ from some of my friends who hold that most Whites are incorrigibly prejudiced. Our hope for progress toward racial fairness in the courts and society, however, lies precisely in the empirically demonstrable desire of most Whites to promote egalitarian ideals and avoid invidious racial discrimination. The main challenge today is to forge a consensus about what constitutes racism and what to do about it.

Racism on Stilts

Perhaps the gravest threat today to progress toward racial justice comes from the right-wing ideologues bent on convincing White people of good faith that negative stereotypes about Blacks are justified. Trotting out discredited studies, unscientific experiments, and cooked statistics, these pundits try to prove that Blacks are inherently less intelligent and more violent than Whites. The unmistakable implication of these “proofs” of Black inferiority is that disparities between Blacks and Whites in education and employment must be blamed on Blacks’ own inferior genes, not on past and present discrimination. A further implication is that Whites need not resist the influence of some profoundly derogatory stereotypes on their thinking about Blacks. After all, according to these learned men, many of these ugly stereotypes are true!

Old-fashioned racism of the Ku Klux Klan variety is still out of fashion. Growing in its place, however, is the highbrow, pseudoscientific variety—racism on stilts, if you will—one that hides its fascist boots beneath a laboratory coat. Pseudoscientific apologies for racial subordination are nothing new in the American experience. One aim of this book is to add a nail to the coffin of this most recent embodiment of highbrow racism, though Iam ever mindful that no quantity of nails will lay it to rest for good. For, like eighteenth-century body snatchers who made handsome profits stealing corpses from graves, opportunistic ideologues like Charles Murray and Richard Hernstein will always be prowling the cemeteries of science for the noisome remains of discredited scientific theories with which to foul the marketplace of ideas.

The Black Tax

Consider what I will call the Black Tax. The Black Tax is the price Black people pay in their encounters with Whites (and some Blacks) because of Black stereotypes. The concept of a “tax” captures several key characteristics of these stereotype-laden encounters: like a tax, racial discrimination is persistent, pervasive, must be dealt with, cannot be avoided, and is not generally resisted. Taxes are commonly regarded as ineluctable facts of human existence, as in the old saw, “Nothing in life is certain save death and taxes.” Racism, too, is regarded by many Black observers as inexorable, as reflected in Derrick Bell’s “permanence of racism” thesis. And just as the state stands behind the collection of the general taxes, Blacks often have good cause to view state representatives such as police and judicial officers as IRS agents for the Black Tax.

The Black Tax has little to do with the Mark Fuhrman-style racism that led to the false imprisonment of my dad, however. The injuries inflicted on Blacks by avowedly virulent racists are grievous and still widespread, but as I suggested earlier, most Americans today are not Mark Fuhrmans, and thus most racial discrimination today is not rooted in conscious animus. Instead, most of it stems either from unconscious mental reflexes or from a belief that Blacks commit a disproportionate number of crimes and therefore statistically pose a greater threat than non- Blacks. It is unconscious discrimination on the one hand and ostensibly rational discrimination on the other that impose the lion’s share of the Black Tax today.

The Black Tax comes in many varieties. Reports abound of Blacks being stopped and interrogated by police for walking or jogging through “White” neighborhoods. Police are often responding to calls from concerned neighbors. Although Fuhrman-style racism may lie behind such calls and stops, it is quite possible that these watchful callers and dutiful officers see themselves as responding reasonably to a person who seems to be “out of place”—nothing personal.

Likewise, it’s “nothing personal” when store security personnel shadow Blacks in department stores, “nothing personal” when clerks refuse to buzz Blacks into jewelry stores and glitzy Manhattan boutiques, and when White women balk at getting on empty elevators with Black (but not White) men. Nothing personal, moreover, in profile stops of Blacks by drug enforcement officers, nothing personal in the redlining of Black neighborhoods by everything from banks to pizza delivery services, and positively nothing personal in the mountain of empirical evidence of racial discrimination in the administration of justice. Without a doubt, the shibboleth of today’s apologists for the Black Tax is “nothing personal.”

A serendipitous illustration of the attitude of many Whites toward the Black Tax emerged from my mailbox just as I was writing this Introduction. I opened the mail to find the following letter responding to remarks I made in a local newspaper, The Pittsburgh Gazette, in which I described the third degree of Blacks by suburban cops and the special attention I receive from store security personnel when I doff my business suit and don some sweats and sneakers.

Dear Mr. Armour:

Re your ramblings in yesterday’s Post-Gazette, let me help you to understand.

If I saw blacks in my neighborhood I would be on the lookout, and for a good reason. In case your t.v. is broken, let me tell you what has been happening in western Pa., as well as the rest of the nation. Blacks, who represent about ten or eleven percent of the population are committing about seventy-five percent of the crime. And, they are committing about ninety five percent of the street crimes. Just turn on the tube at night and see where the crimes are being carried out and by who.

When was the last time you heard about a drive-by shooting in Upper St. Clair [a predominantly White Pittsburgh suburb]? When is the last time you heard of a gang related killing in Fox Chapel [a predominantly White Pittsburgh suburb]? I think you got my point.

Of course sales people are going to watch blacks in a store more closely than whites. . . . Blacks commit a disproportionate amount of shop lifting. Hell, why do you think the large grocery stores have all but abandoned the inner cities where the population is mostly black?

I heard Jesse Jackson say that if he hears foot steps behind him and turns around to see a white face instead of a black one, he is relieved. Does that make him a racist? Does that make me a racist if I say the same thing? No, what it does is make a statement of fact.

Once, I would like to hear a black say he understands why whites feel the way we do. Please clean up your own home before you try to tell us how to think.

Without mincing words, the author of this letter bluntly states the case for the Black Tax from the standpoint of many White tax collectors. Especially telling is the authority the author cites for his statistics on Black criminality—television. Were television my sole source of information on violent crime, I might share the author’s grim reckoning of relative racial crime rates. Thus I will investigate the role of the mass media in the perpetuation of the Black Tax. Sticking my head directly into the lion’s mouth, I will also assume that—despite demonstrable biases in police enforcement—Blacks do commit a disproportionate number of street crimes and ask whether such a statistic justifies acceptance of the Black Tax either in the administration of justice or in the everyday interactions of ordinary citizens.

Further, I will focus on the most insidious and seemingly intractable source of the Black Tax: unconscious discrimination. Unlike the purportedly rational discrimination rooted in statistics, this variant resides in the inner recesses of the human psyche. Drawing on empirical studies, we will see that unconscious racial discrimination influences the social judgments of all Americans and lies at the heart of “Negrophobia,” a posttraumatic stress disorder about Blacks that courts have actually permitted to play a role in formal legal proceedings.

Finally, not content to curse the gloom, I hope to light a candle. Specifically, I will frame a proactive strategy for helping individuals avoid imposing the Black Tax on African Americans. Using recent research in social and cognitive psychology, we will see how racially liberal people can combat unconscious discrimination by inhibiting their automatic negative responses to Blacks and replacing them with controlled, nonprejudiced ones. For this prejudice reduction strategy to work, individuals must consciously confront their own racial stereotypes. This is not easy. Courts, for example, are reluctant to allow attorneys to bring the issue of prejudice into the open at trial. Judges have barred attorneys who represent Blacks, gays, and other socially marginalized clients from encouraging jurors to confront their unconscious biases on the ground that such confrontations “play to the prejudices of the jury.” Without proactive efforts, however, this most cruelly regressive of America’s taxes will continue deepening this nation’s racial rift; with such efforts, there is hope of healing.